I.R. Coelho (Dead) by LRs v State of Tamil Nadu and Others (2007)

Article 31B, inserted by the First Amendment in 1951, says that no Act placed in the Ninth Schedule shall be void for inconsistency with Part III. Used as intended, it protected a handful of land-reform laws. Used without limit, it let Parliament lift any statute out of fundamental-rights review simply by listing it. Kesavananda Bharati (24 April 1973) then held that the amending power cannot destroy the basic structure. The question left behind was obvious: can Parliament still use the Ninth Schedule to give any law total immunity from Part III?

Coelho is the nine-judge answer: no. Every law added to the Ninth Schedule on or after 24 April 1973 can be tested against the basic structure, and the basic structure includes the essence of the fundamental rights in Articles 14, 19 and 21. It is the case that turns the basic structure doctrine from a check on the text of amendments into a check on their effect — the "rights test" or "impact test".

Two statutes were at the centre of the reference.

• The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act 1969, insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, had been struck down by the Supreme Court in Balmadies Plantations Ltd v State of Tamil Nadu (1972), because it was not a measure of agrarian reform protected by Article 31A. By the Thirty-fourth Amendment the Janmam Act, in its entirety, was inserted in the Ninth Schedule.
• Section 2(c) of the West Bengal Land Holding Revenue Act 1979 had been struck down by the Calcutta High Court as arbitrary, and the State's special leave petition was dismissed. By the Sixty-sixth Amendment the whole Act was inserted in the Ninth Schedule.

The challenge before a five-judge Constitution Bench was that these statutes, including the parts already struck down, could not validly be inserted in the Ninth Schedule. By an order of 14 September 1999 that Bench observed that Waman Rao v Union of India (1981) needed reconsideration by a larger Bench to reconcile apparent inconsistencies and to make clear whether an Act found to violate Articles 14, 19 and 31 can be included in the Ninth Schedule, or whether only an amendment that damages the basic structure can be struck down. It suggested a Bench of nine Judges.

The Court framed the broad question itself: "whether on and after 24th April, 1973 when basic structures doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court." [The phrase "basic structures doctrine" is as it appears in the judgment.]

Within it:

1. Are fundamental rights part of the basic structure, so that a Ninth Schedule law can be tested against them?
2. What did Kesavananda Bharati decide about the Twenty-ninth Amendment?
3. What test decides whether a Ninth Schedule law destroys the basic structure?

The reference was answered in the terms below, and the petitions and appeals were directed to be placed before a Three Judge Bench for decision in accordance with the principles laid down.

Article 31B is bounded by Article 368

The power to add laws to the Ninth Schedule is itself a use of the amending power: "The power to amend Ninth Schedule flows from Article 368." Since Kesavananda Bharati limited that power, "Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity."

The Court pointed to how far the device had been stretched — "the number having gone from 13 to 284, shows that it is no longer a mere exception." And it put the principle directly: "The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule would not have absolute immunity."

Fundamental rights and the basic structure

• The Court read Khanna J's clarification in Indira Gandhi's case as showing that his Kesavananda opinion did not exclude fundamental rights from the basic structure: "it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure."
• On the Twenty-ninth Amendment: "The decision in Kesavananda Bharati (supra) regarding the Twenty-ninth amendment is restricted to that particular amendment and no principle flows therefrom."
• "The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the 'Basic Structure' doctrine."
• Articles 20 and 21, whose enforcement cannot be suspended even in an Emergency after the 44th Amendment, are part of the basic structure; so is Article 32.

The test: impact, not form

The Court set out a two-step inquiry: first find whether the Ninth Schedule law violates Part III; if it does, ask whether the violation is destructive of the basic structure. "Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow."

The standard is the direct impact and effect test, "i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor." And "The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent."

The formal conclusions

The Court stated its conclusions in six parts. In summary:

1. A law that abrogates or abridges Part III rights may or may not violate the basic structure. If it does, "whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court."
2. Each new constitutional amendment is judged on its own merits; "The impact test would determine the validity of the challenge."
3. "All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them."
4. Protection — "not blanket protection" — for Ninth Schedule laws is a matter of constitutional adjudication by the "rights test" and the "essence of the right" test; if the infraction affects the basic structure, the law will not get Ninth Schedule protection.
5. "If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment." But a law held to violate Part III and then inserted in the Ninth Schedule after 24 April 1973 is open to challenge on the basic structure ground.
6. "Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge."

After 24 April 1973, Article 31B cannot confer absolute immunity on a law placed in the Ninth Schedule, because the power to insert it flows from Article 368 and is subject to the basic structure. Every such law is open to review, and it loses Ninth Schedule protection if, judged by its actual effect on the rights in Part III (the rights test / impact test), it damages or destroys the basic structure as reflected in Article 21 read with Articles 14 and 19 and the principles underlying them.

• Direct question: Discuss the validity of laws placed in the Ninth Schedule after Kesavananda Bharati. Trace Article 31B from the First Amendment, then Kesavananda (24 April 1973), Waman Rao, the reference, and Coelho's six conclusions. Quote the "13 to 284" line to show why the Court acted.
• Problem question: Parliament places in the Ninth Schedule an Act the Supreme Court had struck down under Article 14. Answer with conclusion (v): because the insertion is after 24 April 1973, it is open to challenge on the ground that it damages the basic structure; then apply the two-step Part III violation / impact test.
• Short note: Rights test / impact test — form of the amendment is irrelevant; its consequence on Part III rights decides.
• Link: Coelho is an application of the Kesavananda basic structure doctrine; cite it whenever you need authority that fundamental rights (at least Articles 14, 19, 21 and 32) form part of the basic structure.